IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150007233 BOARD VOTE: ___x____ ___x____ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150007233 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting her DD Form 214 to show she was retained on active duty past her release from active duty date of 2 September 2010 and retired from active duty by reason of permanent disability on 26 November 2013. She should receive any pay and allowances she is due as a result of this correction, less any entitlements already received. __________x_________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150007233 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of her records to show she was retained on active duty past her release from active duty (REFRAD) date, for the purpose of processing through the appropriate Disability Evaluation System (DES), and correction of her REFRAD date so that it coincides with her retirement on 26 November 2013. 2. The applicant states, in effect, she was retired on 26 November 2013. She was on active duty when she sustained injuries that required her to be medically retired from the Army. The medical process continued after 2 September 2010, the date she was REFRAD, until she was medically retired on 26 November 2013. 3. The applicant provides the following documents, arranged chronologically: * DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 214C (Certificate of Release or Discharge from Active Duty (Continuation Sheet)), for the period ending 2 September 2010 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), signed by the applicant on 20 September 2013 * Orders D 295-11, issued by the U.S. Army Physical Disability Agency (USAPDA), Arlington, VA on 22 October 2013 * a memorandum to the applicant from the Chief, Operations Division, USAPDA, dated 22 October 2013, subject: Permanent Physical Disability Retirement CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 25 January 2006. She completed her initial entry training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator). She served on active duty from 30 January 2006 through 2 June 2006 and from 24 September 2006 through 26 May 2008. 2. The applicant entered active duty on 25 June 2009. She was ordered to active duty in support of Operation Iraqi Freedom and she began her service in Iraq on 2 August 2009. 3. She was promoted to the rank/grade of sergeant/E-5 on 1 May 2010. 4. She redeployed from Iraq on 16 June 2010. Upon completion of demobilization activities, she was placed in a Post-Deployment/Mobilization Respite Absence (PDMRA) status from 27 June 2010 through 11 August 2010. 5. She sustained a depressed skull fracture in an all-terrain vehicle (ATV) accident in July 2010, while in a PDMRA status in her home State of Maine. 6. Orders 10-238-00033, issued by Headquarters, 99th Regional Support Command, Fort Dix, NJ on 26 August 2010, show she was promoted to the rank/grade of staff sergeant/E-6 on 1 September 2010. These orders are filed in her official military personnel file (OMPF); however, in spite of this, none of the documents completed throughout the remainder of her period of military service refer to her with this rank/grade. 7. She was REFRAD on 2 September 2010, in accordance with chapter 4 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), by reason of completion of her required active service. Upon her REFRAD she was transferred to the 619th Transportation Company, a troop program unit of the USAR. 8. Her OMPF does not contain evidence that she underwent a separation physical prior to her REFRAD. 9. Her Noncommissioned Officer Evaluation Report (NCOER) for the period 1 May 2010 through 30 April 2011 shows she received "success" ratings in each rated category, indicating she was serving satisfactorily within the scope of her rank/grade and assigned duties. However, this report does contain a bullet comment indicating she was under physical profile restrictions that affected her ability to accomplish her assigned mission. 10. Her NCOER for the period 1 May 2011 through 30 April 2012 shows she received "success" ratings in each rated category, indicating she was serving satisfactorily within the scope of her rank/grade and assigned duties. However, this report does contain a bullet comment indicating she was awaiting evaluation by a medical evaluation board (MEB) and her current profile severely restricted her performance of duties. 11. The applicant underwent an MEB that found her unfit for further service and referred her to a PEB. 12. She underwent an informal PEB at Fort Sam Houston, TX on 10 September 2013. The PEB found her physically unfit and recommended that she be permanently retired by reason of physical disability with a rating of 90 percent. Her unfitting conditions included cognitive disorder as a residual of traumatic brain injury (TBI) with comorbid adjustment disorder, migraine headaches as a residual of TBI, and grand mal seizures as a residual of TBI. Additionally, the PEB considered several MEB diagnoses that were not found to be unfitting. 13. She concurred with the findings, waived a formal hearing of her case, and did not request reconsideration of her Department of Veterans Affairs (VA) ratings. The PEB findings and recommendation were approved by the USAPDA on 18 November 2013. 14. Orders D 295-11, issued by the USAPDA on 22 October 2013, ordered her placement on the Retired List effective 26 November 2013, by reason of permanent physical disability. 15. In the processing of this case, an advisory opinion was obtained on 9 September 2016 from an Army Review Boards Agency (ARBA) Clinical Psychologist, who opined: a. The applicant enlisted in the USAR on 25 May 1984. She served on active duty from 25 June 2009 to 2 September 2010, at which time she was released in accordance with Army Regulation 635-200, chapter 4, for completion of required active service. She deployed from 2 August 2009 to 16 June 2016 (sic, 2010) in support of Operation Iraqi Freedom. She received a medical discharge on 26 November 2013 after going through the Integrated Disability Evaluation System (IDES). b. On 17 September 2014, the applicant requested the Army Board for Correction of Military Records (ABCMR) change her reason for separation to medical retirement, claiming the Army should have placed her on medical hold due to injuries she sustained while on active duty, which could have resulted in her medical retirement in 2010 instead of 2013. She contends her unit did not do the necessary paperwork for her to remain on active duty until medical treatment was completed. c. After going through the IDES, it was recommended by the USAPDA, in a memorandum dated 22 October 2013, that the applicant be permanently retired with a disability rating of 90 percent for: 1) cognitive disorder as a residual of TBI with comorbid adjustment disorder, 2) migraine headaches as a residual of TBI, and 3) grand mal seizures as a residual of TBI. d. The effective date of retirement and retired pay was determined to be 26 November 2013; however, medical records indicate the injuries were sustained in July 2010 when the applicant was an activated Reservist. She suffered a depressed skull fracture after an ATV accident that resulted in migraine headaches and difficulties with executive functioning, ability to stay on task, and ability to complete work duties in regards to safely operating a military vehicle as required by her military occupational specialty. The condition of grand mal seizures manifested in November 2010 subsequent to the depressed skull fracture. e. The ARBA Clinical Psychologist was asked to determine the applicant's eligibility for a medical retirement based on her conditions were duly considered when she was REFRAD. This opinion is based on the information provided by the ABCMR as the Department of Defense (DoD) electronic medical record (AHLTA) did not contain records related to injuries sustained in 2010 following the ATV accident. Although there is a lack of supporting electronic military medical records, there is sufficient evidence based on the documentation from the PEB and the USAPDA that her physical disability was sustained and identified while she served on active duty. 16. The applicant was provided a copy of the advisory opinion on 9 September 2016, for review and possible rebuttal. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 1-24 (Medical/dental care required or sick in hospital when period of service expires) provides that a Soldier may only be considered for retention past the set release date when one or both of the following apply: * continued health care is required (must be in hospital status but not necessarily occupying a bed) * physical disability processing is required or has been initiated 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Army Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DoD Instruction (DoDI) 1332.18 (Disability Evaluation System) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The PDES assessment process involves two distinct stages – the MEB and the PEB. (1) The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. (2) A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. (3) The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army disability system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. This regulation provides that: a. The objective of the Army’s PDES is to maintain an effective and fit military organization with maximum use of available manpower and to provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability. b. Providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission. A Soldier may not be retained or separated solely to increase retirement or separation benefits. c. A Soldier whose normal scheduled date of non-disability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system (emphasis added). d. Headquarters, Department of the Army, may defer the disposition of a Soldier who, although unfit because of physical disability, can still serve effectively with proper assignment limitations. A Soldier who is unfit because of physical disability will not be continued on active duty solely to increase benefits. The Soldier must be able to maintain himself or herself in a military environment without jeopardizing individual health or the health of others. The Soldier must not require an excessive amount of medical care. 4. Directive-Type Memorandum (DTM) 11-015 explains the IDES. It states: a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DoD will follow the existing policies and procedures requirements promulgated in DoDI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA C&P standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. DISCUSSION: 1. The applicant requests correction of her records to show she was retained on active duty past her REFRAD date for the purpose of processing through the appropriate DES and correction of her REFRAD date so that it coincides with her retirement on 26 November 2013. 2. The evidence of record shows the applicant redeployed from Iraq on 16 June 2010. Upon the completion of demobilization activities, she was placed in a PDMRA status from 27 June 2010 through 11 August 2010. She sustained a depressed skull fracture in an ATV accident in July 2010, while at home in Maine. She was REFRAD on 2 September 2010 at the completion of her required active service. 3. Army Regulation 635-200 provides that a Soldier may only be considered for retention past the set release date when one or both of the following apply: * continued health care is required (must be in hospital status but not necessarily occupying a bed) * physical disability processing is required or has been initiated 4. The available evidence does not show that she was in a hospital status at the time of REFRAD or that a determination had been made at the time that physical disability processing was required or that disability processing had been initiated. 4. She contends her injuries were incurred on active duty and required her to be medically retired from the Army instead of REFRAD with retirement at a later date. 5. The purpose of the DES is to maintain an effective and fit military organization with maximum use of available manpower; to provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability; and to provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected. There is no requirement that a Reserve Component Soldier be retained on active duty—or ordered to active duty—for the purpose of DES processing. 6. In this case, after she had been REFRAD, she was referred to the DES. A PEB evaluated her fitness for service and the effect of her injuries and/or conditions on her ability to perform the duties required of her grade and MOS, and found her unfit for further service and recommended her permanent retirement by reason of physical disability. The PEB findings and recommendation were approved and she was medically retired on 26 November 2013. 7. An ARBA Staff Clinical Psychologist opined that although there is a lack of supporting electronic military medical records in this case, there is sufficient evidence based on the documentation from the PEB and the USAPDA that the applicant's physical disability was sustained and identified while she served on active duty. These facts are not in question. What the available evidence does not address is whether continued health care was required (must be in hospital status but not necessarily occupying a bed) or physical disability processing was required or had been initiated prior to her REFRAD. Meeting either criterion would have been a basis for her retention on active duty, provided she voluntarily agreed to be retained. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007233 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2